1      HEXLIBRIS 


of  t&e  Wntteti 


OX    THE 


SUBJECT  OF  RESTRAINING 


THE 


INCREASE  OF  SLAVERY 

IN 

NEW  STATES 

TO    BE 

ADMITTED  INTO  THE  UNION. 

PREPARED 

IN   PURSUANCE    OF   A    VOTE    OF   THE    INHABITANTS    OF    BOSTON 

AND    ITS    VICINITY,    ASSEMBLED    AT   THE    STATE    HOUSE, 

ON   THE   THIRD    OF    DECEMBER,   A.    D.    1819. 


BOSTON  : 

SEWELL    PHELPS,    PRINTER., 
No.  5,  Court  Street, 

1819, 


THE  Committee  appointed  by  a  vote  of  the  Meeting  holden  in  the 
State  House  on  the  3d  instant,  to  prepare  a  Memorial  to  Congress,  on 
the  subject  of  the  Prohibition  of  Slavery  iu  the  New  States,  submit  the 
following. 

DANIEL  WEBSTER, 
GEORGE  BLAKE, 
,  JOSIAH  QUINCY, 

JAMES  T.  AUSTIN, 
JOHN  GALLtSON. 
,  December  lo,  1819. 


MEMORIAL. 


To  the  Senate  and  House,  of  Representatives  of  the  United  States, 
in  Congress  Assembled. 

THE  undersigned,  inhabitants  of  Boston  and  its  vicinity, 
beg  leave  most  respectfully  and  humbly  to  represent ;  That 
the  question  of  the  introduction  of  Slavery  into  the  New 
States,  to  be  formed  on  the  west  side  of  the  Mississippi-  River, 
appears  to  them  to  be  a  question  of  the  last  importance  to  the 
future  welfare  of  the  United  States.  If  the  progress  of  this 
great  evil  is  ever  to  be  arrested,  it  seems  to  the  undersigned 
that  this  is  the  time  to  arrest  it.  A  false  step  taken  now  can 
not  be  retraced ;  and  it  appears  to  us  that  the  happiness  of 
unborn  millions  rests  on  the  measures,  which  Congress  may, 
on  this  occasion,  adopt.  Considering  this  as  no  local  ques 
tion,  nor  a  question  to  be  decided  by  a  temporary  expedien 
cy,  but  as  involving  great  interests  of  the  whole  of  the  United 
States,  and  affecting  deeply  and  essentially  those  objects  of 
common  defence,  general  welfare,  and  the  perpetuation  of 
the  blessings  of  liberty,  for  which  the  Constitution  itself  was 
formed,  we  have  presumed,  in  this  way,  to  offer  our  senti 
ments  and  express  our  wishes  to  the  National  Legislature. 
And  as  various  reasons  have  been  suggested,  against  prohibit 
ing  Slavery  in  the  New  States,  it  may  perhaps  be  permitted 
to  us  to  state  our  reasons,  both  for  believing  that  Congress 
possesses  the  Constitutional  power  to  make  such  prohibition 


a  condition,  on  the  admission  of  a  New  State  into  the  Union, 
and  that  it  is  just  and  proper  that  they  should  exercise  that 
power. 

And,  in  the  first  place,  as  to  the  Constitutional  authority  of 
Congress. — The  Constitution  of  the  United  States  has  declar 
ed,  that  "  the  Congress  shall  have  power  to  dispose  of  and 
"  make  all  needful  rules  and  regulations  respecting  the  Terri- 
"  tory,  or  other  property  belonging  to  the  United  States ;  and 
"  nothing  in  this  Constitution  shall  be  so  construed  as  to  preju- 
"  dice  the  claims  of  the  United  States,  or  of  any  particular 
"  State."  It  is  very  well  known  that  the  saving  in  this  clause 
of  the  claims  of  any  particular  State  was  designed  to  apply 
to  claims  by  the  then  existing  States  of  territory,  which  was 
also  claimed  by  the  United  States  as  their  own  property.  It 
has,  therefore,  no  bearing  on  the  present  question.  The  pow 
er,  then,  of  Congress  over  its  own  territories  is,  by  the  very 
terms  of  the  Constitution,  unlimited.  It  may  make  all "  need- 
"  ful  rules  and  regulations  ;"  which  of  course  include  all  such 
regulations  as  its  own  views  of  policy  or  expediency  shall 
from  time  to  time  dictate.  If,  therefore,  in  its  judgment,  it  be 
needful  for  the  benefit  of  a  Territory  to  enact  a  prohibition  of 
Slavery,  it  would  seem  to  be  as  much  within  its  power  of  legis 
lation,  as  any  other  ordinary  act  of  local  policy.  Its  sove 
reignty  being  complete  and  universal,  as  to  the  Territory,  it 
may  exercise  over  it  the  most  ample  jurisdiction  in  every 
respect.  It  possesses  in  this  view  all  the  authority,  which  any 
State  Legislature  possesses  over  its  own  Territory ;  and  if  a 
State  Legislature  may,  in  its  discretion,  abolish  or  prohibit 
Slavery  within  its  own  limits,  in  virtue  of  its  general  legisla 
tive  authority,  for  the  same  reason  Congress  also  may  exer 
cise  the  like  authority  over  its  own  Territories.  And  that  a 
State  Legislature,  unless  restrained  by  some  constitutional 
provision,  may  so  do,  is  unquestionable,  and  has  been  estab 
lished  by  general  practice. 

If,  then,  Congress  possess  unlimited  powers  of  government 
over  its  Territories,  it  may  certainly  from  time  to  time  vary, 


control  and  modify  its  legislation  as  it  pleases.  The  Territo* 
ries,  as  such,  can  have  no  rights  but  such  as  are  conferred  by 
Congress ;  and  it  is  morally  bound  to  adopt  such  measures  as 
are  best  calculated  to  promote  the  permanent  interests  and 
security  of  these  Territories,  jas  well  as  to  secure  the  future 
well  being  of  the  Union.  Without  an  enabling  act  of  Con 
gress,  no  Territory  or  portion  of  Territory  belonging  to  the 
United  States  can  be  created  into  a  State,  or  form  a  constitu 
tion  of  government,  or  become  discharged  of  its  Territorial 
obedience ;  and  if  Congress  may  grant  to  any  of  its  Territories 
this  privilege,  it  may  also  most  clearly,  as  it  seems  to  us,  iu 
its  discretion,  refuse  it.  It  is  not  obliged  to  admit  it  to  become 
a  State,  if  it  be  not  satisfied  that  such  admission  will  conduce 
as  well  to  its  own  good  as  to  the  good  of  the  Union.  In  this 
respect  Congress  stands,  in  relation  to  its  Territories,  like  a 
State  in  relation  to  any  portion  of  its  own  Territory,  which 
requests  to  be  separated  and  formed  into  a  New  State.  No 
person  has  ever  doubted  that  the  question  as  to  such  separa 
tion  was  a  question  of  expediency,  resting  in  the  sound  dis 
cretion  of  the  State;  and  that  it  could  not  be  claimed  as 
matter  of  right,  unless  in  virtue  of  some  compact,  establishing 
such  right.  No  person  has  ever  doubted  that  any  State,  in 
acceding  to  a  division  of  its  Territory,  and  the  formation  of  a 
New  State,  has  always  possessed  the  right  to  impose  its  own 
terms  and  conditions  as  a  part  of  the  grant.  The  ground  of 
this  right  is  the  exclusive  possession  of  sovereignty,  with 
which  the  State  is  not  compellable  to  part,  and  if  it  does  part 
with  it,  it  may  annex  all  such  conditions  and  rules  as  it  deems 
fit  for  its  own  security  and  for  the  permanent  good  of  the  citi- 
zens  of  the  divided  Territory.  Such  was  the  case  of  Virginia,  \ 
when  she  acceded  to  the  separation  of  the  District  of  Ken 
tucky,  and  allowed  it  to  become  an  independent  State.  Such  / 
is  the  case  of  the  recent  separation  of  the  District  of  Maine/ 
from  Massachusetts.  In  each  of  these  cases,  a  considerable 
number  of  fundamental  conditions  were  offered  to  the  Districts 
as  the  sole  grounds,  upon  which  the  separation  could  be  al- 


6 

lowed ;  and  not  a  doubt  was  ever  entertained,  that  these  con 
ditions  were  within  the  legitimate  exercise  and  authority  of 
these  States.  These  conditions  were  accepted  by  Kentucky, 
and  have  been  accepted  by  Maine ;  and  it  was  never  imagin 
ed,  that  they  in  any  respect  prevented  either  from  possessing 
all  the  proper  attributes  of  State  sovereignty.  They  have 
never  been  viewed  in  any  other  light  than  as  just  restrictions, 
not  upon  essential  State  rights,  but  upon  an  unlimited  exercise 
of  sovereignty,  which  might  be  injurious  to  rights  already 
vested  in  the  parent  State,  or  its  citizens.  And  if  Virginia 
and  Massachusetts  may,  by  virtue  of  their  sovereign  rights, 
impose  conditions  upon  their  grants  of  their  own  Territorial 
jurisdiction  ;  for  the  same  reason,  it  would  seem,  the  United 
States  may  impose  any  like  conditions,  according  to  their  own 
sound  discretion.  And  a  construction  of  this  clause  of  the 
Constitution  of  the  United  States,  which  should  inhibit  Con 
gress  from  annexing  conditions  to  the  act  enabling  any  Terri 
tory  to  form  a  State  government,  because  it  would  impair  the 
sovereignty  of  the  State  so  formed,  would  equally  affect  the 
like  conditions  annexed  by  a  State  to  a  like  act  in  favour  of 
a  portion  of  its  own  Territory.  A  construction,  which  would 
lead  to  such  consequences,  cannot  be  a  sound  one.  It  would 
lead  to  the  most  injurious  results,  and  absolve  all  the  New 
States,  which  have  been  admitted  into  the  Union  since  the  year 
1791,  from  conditions,  which  have  hitherto  been  held  to  be  in 
violably  binding  upon  them.  It  would  also  be  repugnant  to  the 
comprehensive  language  of  this  clause  of  the  Constitution,  and 
to  the  uniform  practice,  which  has  prevailed  under  it  from  the 
earliest  period  of  the  formation  of  New  States  to  the  present 
time.  No  State  has  ever  admitted  a  New  State  to  be  formed 
in  its  own  bosom  without  annexing  conditions,  and  no  act  has 
passed  Congress  enabling  any  of  its  Territories  to  become 
States,  which  has  not,  in  like  manner,  annexed  important  fun 
damental  conditions  to  the  act.  And  if  conditions  may  be 
annexed,  it  depends  solely  upon  the  wisdom  of  Congress  what 
such  conditions  shall  be.  They  may  embrace  every  thing 


not  incompatible  with  the  possession  of  those  federal  rights, 
which  an  admission  into  the  Union  confers  upon  the  New 
State.  As  to  such  rights,  there  must,  by  the  very  nature  of 
the  case,  be  an  implied  exception.  The  remarks,  that  have 
hitherto  been  made,  have  proceeded  upon  the  supposition  that 
Congress  are  not  morally  bound,  either  by  the  Treaty  of 
Cession,  or  by  any  compact  with  the  inhabitants,  to  pass  an 
act  for  the  erection  of  the  New  State,  without  imposing  condi 
tions. 

These  observations,  so  far,  have  been  confined  to  the  Con 
stitutional  authority  of  Congress  flowing  directly  from  the 
clause  which  has  been  mentioned.  Here  then  is  the  case  of  an 
express  power  given  in  plain  terms  ;  and  by  another  clause  of 
the  Constitution,  Congress  have  express  authority  "  to  make 
"  all  laws  necessary  and  proper  for  carrying  that  power  into 
"  execution."  But  other  clauses  may  well  be  called  in  aid  of 
this  construction,  applicable  to  all  cases  whatsoever  in  which 
a  New  State  seeks  to  be  admitted  into  the  Union.  The  Con 
stitution  provides  that  "  New  States  may  be  admitted  into  the 
"  Union."  The  only  parties  to  the  Constitution,  contemplated 
by  it  originally,  were  the  thirteen  confederated  States.  It  was 
perceived  that  the  Territory,  already  included  within  these 
States,  might  be  beneficially  divided  and  organized  under  sepa 
rate  governments,  and  that  the  Territories  already  belonging 
to  the  United  States  might,  and  in  good  faith  ought,  to  partici 
pate  in  the  privileges  of  the  federal  Union.  It  was  therefore 
wisely  provided  that  Congress,  in  which  all  the  Old  States  were 
represented,  should  have  authority  to  admit  New  States  into 
the  Union,  whenever  in  its  judgment  such  an  act  would  be  ben 
eficial  to  the  public  interests.  But  it  was  at  the  same  time  pro 
vided  that  no  New  State  should  be  formed  or  erected  within 
the  jurisdiction  of  any  other  State,  &c.  without  the  consent  of 
the  Legislatures  of  the  States  concerned,  as  well  as  of  the  Con 
gress.  It  is  observable,  that  the  language  of  the  Constitution 
is,  that  New  States  may  (not  shall)  be  admitted  into  the  Union. 
It  is  therefore  a  privilege  which  Congress  may  withhold  or 


8 

grartf,  according  to  its  discretion.  If  it  may  give  its  consent,  it 
may  also  refuse  it,  and  no  New  State  can  have  a  right  to  compel 
Congress  to  do  that,  which  in  its  judgment  is  not  fit  to  be  done. 
If  Congress  have  authority  to  withhold  its  consent,  it  has  also 
authority  to  give  that  consent  either  absolutely,  or  upon  con 
dition  ;  for  there  is  nothing  in  the  Constitution  which  restricts 
the  manner  or  the  terms  of  that  consent.  It  is  observable,  too, 
that  where  a  New  State  is  to  be  erected  within  the  limits  of  an 
Old  State,  the  consent  of  the  State  Legislature  is  as  necessary 
as  that  of  Congress.  Now  it  will  not,  we  suppose,  be  contend 
ed,  that  the  State  Legislature  may  not  grant  its  consent  upon 
condition  ;  and  if  so,  Congress  must  have  the  same  right  also, 
for  the  consent  of  the  State  Legislatures  and  of  Congress  is 
required  by  the  same  clause,  and  the  construction  which  fixes 
the  meaning  of  "  consent"  as  to  the  one,  must,  in  order  to 
maintain  consistency,  fix  it  as  to  the  other.  And  here  it  might 
be  again  asked,  if  the  conditions  of  Virginia,  annexed  to  her 
consent  that  Kentucky  should  become  a  State,  were  not  bind 
ing  upon  the  latter,  and  upon  Congress  ?  It  appears  to  the 
memorialists  perfectly  clear,  that  since  Congress  has  a  discre 
tionary  authority  as  to  the  admission  of  New  States  into  the 
Union,  it  may  impose  whatever  conditions  it  pleases  as  terms 
of  that  consent ;  and  that  this  clause,  alone,  which  applies  as 
well  to  New  States  formed  from  Old  States,  as  to  those  formed 
from  the  Territories  of  the  Union,  completely  establishes  the 
right,  for  which  the  memorialists  contend. 

The  creation  of  a  New  State  is,  in  effect,  a  compact  between 
Congress  and  the  inhabitants  of  the  proposed  State.  Con^ 
gress  would  not  probably  claim  the  power  of  compelling  the 
inhabitants  of  Missouri  to  form  a  constitution  of  their  own, 
and  come  into  the  Union  as  a  State.  It  is  as  plain,  that  the 
inhabitants  of  that  Territory  have  no  right  to  admission  into 
the  Union,  as  a  State,  without  the  consent  of  Congress.  Nek 
ther  party  is  bound  to  form  this  connexion.  It  can  be  form-? 
ed  only  by  the  consent  of  both.  What,  then,  prevents  Con,- 
gress,  as  one  of  the  stipulating  parties,  to  propose  its  terms  ? 


9 

And  if  the  other  party  assents  to  these  terms,  why  do  they  not 
effectually  bind  both  parties?  Or  if  the  inhabitants  of  the  Ter 
ritory  do  not  choose  to  accept  the  proposed  terms,  but  prefer 
to  remain  under  a  Territorial  government,  has  Congress  de 
prived  them  of  any  right,  or  subjected  them  to  any  restraint, 
which,  in  its  discretion,  it  had  not  authority  to  do  ?  If  the  ad 
mission  of  New  States  be  not  the  discretionary  exercise  of  a 
Constitutional  power,  but,  in  all  cases,  an  imperative  duty, 
how  is  it  to  be  performed  ?  If  the  Constitution  means  that 
Congress  shall  admit  New  States,  does  it  mean  that  Congress 
shall  do  this  on  every  application,  and  under  all  circumstan 
ces  ?  Or  if  this  construction  cannot  be  admitted,  and  if  it  must 
be  conceded  that  Congress  must,  in  some  respects,  exercise 
its  discretion,  on  the  admission  of  New  States,  how  is  it  to  be 
shewn,  that  that  discretion  may  not  be  exercised,  in  regard  to 
this  subject,  as  well  as  in  regard  to  others  ? 

The  Constitution  declares  "  that  the  migration  or  importa- 
"  tion  of  such  persons  as  any  of  the  States,  now  existing,  shall 
"  think  proper  to  admit,  shall  not  be  prohibited  by  the  Con- 
"  gress,  prior  to  the  year  1 808."  It  is  most  manifest  that  the  / 
Constitution  does  contemplate,  in  the  very  terms  of  this  clause, 
that  Congress  possess  the  authority  to  prohibit  the  migration 
or  importation  of  Slaves ;  for  it  limits  the  exercise  of  this 
authority  for  a  specific  period  of  time,  leaving  it  to  its  full 
operation  ever  afterwards.  And  this  power  seems  necessari 
ly  included  in  the  authority,  which  belongs  to  Congress,  u  to 
"  regulate  commerce  with  foreign  nations  and  among  the  seve- 
"  ral  States."  No  person  has  ever  doubted  that  the  prohibition 
of  the  foreign  Slave  Trade  was  completely  within  the  author 
ity  of  Congress,  since  the  year  1808.  And  why  ?  Certainly, 
only  because  it  is  embraced  in  the  regulation  of  foreign  com 
merce  :  and  if  so,  it  may  for  the  like  reason  be  prohibited, 
since  that  period,  between  the  States.  Commerce  in  Slaves, 
since  the  year  1808,  being  as  much  subject  to  the  regulation 
of  Congress  as  any  other  commerce,  if  it  should  see  fit  to  en 
act  that  no  Slave  should  ever  be  sold  from  one  State  to  ano- 
2 


10 

ther,  it  is  not  perceived  how  its  Constitutional  right  to  make 
such  provision  could  be  questioned.  It  would  seem  to  be  too 
plain  to  be  questioned,  that  Congress  did  possess  the  power, 
before  the  year  1808,  to  prohibit  the  migration  or  importation 
of  Slaves  into  its  Territories,  (and  in  point  of  fact  it  exercised 
that  power)  as  well  as  into  any  New  States ;  and  that  its  au 
thority,  after  that  year,  might  be  as  fully  exercised  to  pre 
vent  the  migration  or  importation  of  Slaves  into  any  of  the 
Old  States.  And  if  it  may  prohibit  New  States  from  importing 
Slaves,  it  may  surely,  as  we  humbly  submit,  make  it  a  condi 
tion  of  the  admission  of  such  States  into  the  Union,  that  they 
shall  never  import  them.  In  relation,  too,  to  its  own  Territo 
ries,  Congress  possess  a  more  extensive  authority,  and  mayy 
in  various  other  ways,  effect  the  same  object.  It  might,  for 
example,  make  it  an  express  condition  of  its  grants  of  the  soil, 
that  the  owners  shall  never  hold  Slaves ;  and  thus  prevent  the 
possession  of  Slaves  from  ever  being  connected  with  the  own 
ership  of  the  soil. 

As  corroborative  of  the  views,  which  have  been  already 
suggested,  the  memorialists  would  respectfully  call  the  atten 
tion  of  Congress  to  the  history  of  the  national  legislation, 
under  the  confederation  as  well  as  under  the  present  Con 
stitution,  on  this  interesting  subject.  Unless  the  memorial 
ists  greatly  mistake,  it  will  demonstrate  the  sense  of  the  na 
tion  at  every  period  of  its  legislation  to  have  been,  that  the 
prohibition  of  Slavery  was  no  infringement  of  any  just  rights 
belonging  to  free  States,  and  was  not  incompatible  with  the 
enjoyment  of  all  the  rights  and  immunities,  which  an  admis 
sion  into  the  Union  was  supposed  to  confer. 

It  wiil  be  recollected  that  Congress,  by  a  Resolve  of  the 
10th  of  October,  1780,  declared  that  the  unappropriated  lands 
that  might  be  ceded  to  the  United  States,  pursuant  to  <a  pre 
vious  recommendation  of  Congress,  should  be  disposed  of 
for  the  common  benefit  of  the  United  States,  and  be  settled 
and  formed  into  distinct  republican  States,  which  should  be 
come  members  of  the  federal  Union  and  have  the  same 


11 

rights  of  sovereignty,  freedom  and  independence,  as  the  other 
States.  This  language  is  exceedingly  strong,  and  guaranties 
to  the  New  States  the  same  rights  of  sovereignty  as  the  Old 
States  possessed.  It  was  undoubtedly  with  this  Resolve  in 
view,  that  the  Territory  northwest  of  the  Ohio  was  ultimate 
ly  ceded  to  the  United  States  by  the  several  States  claiming 
title  to  it ;  viz.  by  Massachusetts,  Connecticut,  New  York,  and 
Virginia.  New  York  made  a  cession  on  the  first  of  March, 
1781,  without  annexing  any  condition  ;  Virginia,  on  the  first 
of  March,  1784,  upon  certain  conditions  ;  and,  among  others, 
a  condition  embracing  the  substance  of  the  Resolve  of  the 
1  Oth  of  October,  1 780.  Massachusetts  made  a  cession  on  the 
19th  of  April,  1785,  stating  no  conditions,  but  expressly  to  the 
uses  stated  in  the  Resolve  of  1780.  And  lastly  Connecticut 
made  a  cession  on  the  13th  of  September,  1786,  without  any 
condition,  but  expressly  for  the  common  use  and  benefit  of 
the  United  States.  On  the  13th  of  July,  1787,  Congress  pass 
ed  an  Ordinance  for  the  government  of  the  Territory  so  add 
ed,  which  has  ever  since  continued  in  force,  and  has  formed 
the  basis  of  the  Territorial  governments  of  the  United  States. 
This  Ordinance  was  passed  by  the  unanimous  voice  of  all  the 
States  present  at  its  passage  ;  viz.  Massachusetts,  New  York, 
Pennsylvania,  Delaware,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia.  It  contains  six  fundamental  articles 
as  a  compact  between  the  United  States  and  the  inhabitants, 
who  might  occupy  that  Territory,  which  are  introduced  by 
a  preamble,  declaring  them  to  be  "  for  extending  the  funda- 
"  mental  principles  of  civil  and  religious  liberty,  which  form 
"  the  basis  whereon  these  republics,  their  laws  and  constitu- 
"  tions,  are  created ;  to  fix  and  establish  those  principles  as 
"  the  basis  of  all  laws,  constitutions  and  governments,  which 
"  forever  hereafter  shall  be  formed  in  said  Territory ;  to  pro- 
•*'  vide  also  for  the  establishment  of  States  and  a  government 
"  therein,  and  for  their  admission  into  a  share  in  the  federal 
*'  councils,  on  an  equal  footing  with  the  original  States,  at  as 
"  early  a  period  as  might  be  consistent  with  the  general  late- 


12 


"  rest."  The  6th  article  declares,  that  "  there  shall  neither 
"  be  Slavery  nor  involuntary  servitude  in  the  said  Territory, 
"  otherwise  than  for  the  punishment  of  crimes,  whereof  the 
"  party  shall  become  convicted."  It  is  observable,  that  no 
objection  occurred  to  this  article,  on  the  ground  that  it  was 
incompatible  with  the  equal  sovereignty,  freedom  and  inde 
pendence  with  the  original  States,  to  which  the  New  States, 
to  be  formed  in  the  ceded  Territory,  were  entitled,  by  the 
Resolve  of  the  10th  of  October,  1780,  and  by  the  express 
reference  to  that  Resolve,  in  the  conditions  of  some  of  the 
cessions.  It  is  observable,  also,  that  by  the  preamble  alrea 
dy  recited,  to  which  all  the  States  present  acceded,  and  among 
these  were  three  of  the  ceding  States,  and  a  majority  of  the 
Slave-holding  States,  it  was  expressly  admitted,  that  the  re 
strictions  of  the  6th  article  would  not  deprive  the  New  States, 
upon  their  admission  into  the  federal  councils,  of  their  equal 
footing  with  the  original  States.  This  is  a  high,  legislative  con 
struction,  by  independent  States,  acting  in  their  sovereign  ca 
pacity,  and  entitled  to  the  greater  weight,  because  it  was  a  sub 
ject  of  common  interest ;  and  to  all  it  could  not  but  be  deem 
ed  a  precedent,  which  would  justly  influence  the  subsequent 
measures  of  the  general  government.  Since  the  adoption  of 
the  Constitution,  three  New  States,  forming  a  part  of  this  Ter 
ritory,  viz.  Ohio,  Indiana,  and  Illinois  have  been  admitted 
into  the  Union.  In  the  acts  enabling  them  to  form  State  go 
vernments  and  a  State  constitution,  Congress  has,  among 
other  very  important  conditions,  made  it  a  fundamental  con 
dition,  that  their  constitutions  should  contain  nothing  repug 
nant  to  the  Ordinance  of  1787.  These  conditions  were  ac 
ceded  to  by  these  States,  and  have  ever  been  deemed  obliga 
tory  upon  them  and  inviolable;  and  these  States,  notwith 
standing  these  conditions,  are  universally  considered  as  ad 
mitted  into  the  Union  upon  the  same  footing  as  the  original 
States,  and  as  possessing,  in  respect  to  the  Union,  the  same 
rights  of  sovereignty,  freedom,  and  independence  as  the  other 
States,  in  the  sense,  in  which  those  terms  are  used  in  the  Re- 


13 

^solve  of  1 780.  During  a  period  of  thirty  years,  not  a  doubt 
has  been  suggested,  that  the  provisions  of  this  Ordinance  were 
perfectly  compatible  with  the  implied  and  express  conditions 
of  the  cessions  of  this  Territory ;  and  that  Congress  might 
justly  impose  the  conditions,  which  it  contains,  upon  all  the  / 
States  formed  within  its  limits. 

In  the  year  1791,  Vermont  was  admitted  into  the  Union, 
without  any  condition  being  annexed  respecting  Slavery. 
The  reason  was  obvious.  It  had  already  formed  a  constitu 
tion,  which  excluded  Slavery ;  and  it  may  be  also  asserted, 
that,  looking  to  the  habits  and  feelings  of  its  population,  and 
the  habits  and  feelings,  and  constitutional  provisions  of  neigh 
bouring  States,  it  was  morally  impossible  that  Slavery  could 
be  adopted  in  that  State. 

Kentucky  was  admitted  into  the  Union  in  June,  1 792.  The 
State  was  formed  from  the  State  of  Virginia,  and  the  latter,  in 
granting  its  consent,  imposed  certain  conditions,  which  have 
since  been  supposed  to  form  a  fundamental  compact,  which 
neither  is  at  liberty  to  violate.  Congress  did  not  impose 
any  restrictions  as  to  Slavery  on  its  admission,  and  for  rea 
sons,  which  cannot  escape  the  most  careless  observer.  It 
would  have  been  manifestly  unjust,  as  well  as  impolitic. 

Tennessee  was  admitted  into  the  Union  in  June,  1796.  It 
was  ceded  by  North  Carolina,  more  than  six  years  before,  as 
a  Territory,  upon  certain  conditions,  and  among  them,  that 
Congress  should  assume  the  government  of  the  Territory, 
and  govern  it  according  to  the  Ordinance  of  1787;  with  a 
proviso,  however,  "  that  no  regulation  made  or  to  be  made 
"  by  Congress  shall  tend  to  emancipate  Slaves."  In  good 
faith,  therefore,  Congress  could  not  justly  insist  upon  a  pro 
hibition  of  Slavery  upon  its  admission  into  the  Union. 

Mississippi  was  admitted  into  the  Union  in  December, 
1817,  upon  condition  that  its  constitution  should  contain 
nothing  repugnant  to  the  Ordinance  of  1787,  so  far  as  the 
same  had  been  extended  to  the  Territory  by  the  agreement 
of  cession  made  between  the  United  States  and  Georgia ;  and 


14 

Alabama  was  authorized  to  become  a  State  by  the  act  of 
2d  of  March,  1819,  upon  a  similar  condition.  Both  of  these 
States  were  ceded  as  one  Territory  to  the  United  States  by 
Georgia,  in  April,  1802,  upon  condition,  among  other  things, 
that  it  should  be  admitted  into  the  Union  in  the  same  manner 
as  the  Territory  northwest  of  the  Ohio  might  be  under  the 
Ordinance  of  1787;  "  which  Ordinance  (it  is  declared)  shall 
u  extend  to  the  Territory  contained  in  the  present  act  of  ces- 
"  sion,  that  article  only  accepted,  -which  forbids  Slavery."  The 
prohibition  of  Slavery  could  not,  therefore,  without  the  gross 
est  breach  of  faith,  be  applied  to  this  Territory.  And  the 
very  circumstance  of  this  exception  in  this  cession  of  Geor 
gia,  as  well  as  in  that  of  North  Carolina,  shews  strongly  the 
sense  of  those  States  that,  without  such  an  exception,  Con 
gress  would  possess  the  authority  in  question. 

The  memorialists,  after  this  general  survey,  would  respect 
fully  ask  the  attention  of  Congress  to  the  state  of  the  question 
of  the  right  of  Congress  to  prohibit  Slavery  in  that  part  of 
the  former  Territory  of  Louisiana,  which  now  forms  the  Mis 
souri  Territory.  Louisiana  was  purchased  of  France  by  the 
Treaty  of  the  30th  of  April,  1803.  The  third  article  of  that 
Treaty  is  as  follows:  "The  inhabitants  of  the  ceded  Terri- 
"  tory  shall  be  incorporated  into  the  Union  of  the  United 
"  States,  and  admitted  as  soon  as  possible,  according  to  the 
"  principles  of  the  federal  Constitution,  to  the  enjoyment  of  all 
"  the  rights,  advantages  and  immunities  of  citizens  of  the  United 
M  States ;  and  in  the  mean  time  they  shall  be  maintained  and 
"  protected  in  the  free  enjoyment  of  their  liberty,  property, 
"  and  the  religion,  which  they  profess." 

Although  the  language  of  this  article  is  not  very  precise 
or  accurate,  the  memorialists  conceive  that  its  real  import 
and  intent  cannot  be  mistaken.  The  first  clause  provides 
for  the  admission  of  the  ceded  Territory  into  the  Union,  and 
the  succeeding  clause  shews  this  must  be  according  to  the 
principles  of  the  federal  Constitution ;  and  this  very  qualifica 
tion  necessarily  excludes  the  idea  that  Congress  were  not  to 


15 

be  at  liberty  to  impose  any  conditions  upon  such  admission, 
which  were  consistent  with  the  principles  of  that  Constitu 
tion,  and  which  had  been  or  might  justly  be  applied  to  other 
New  States.  The  language  is  not  by  any  means  so  pointed 
as  that  of  the  Resolve  of  1780:  and  yet  it  has  been  seen 
that  that  Resolve  was  never  supposed  to  inhibit  the  authori 
ty  of  Congress,  as  to  the  introduction  of  Slavery.  And  it  is 
clear,  upon  the  plainest  rules  of  construction,  that  in  the  ab 
sence  of  all  restrictive  language,  a  clause,  merely  providing 
for  the  admission  of  a  Territory  into  the  Union,  must  be 
construed  to  authorize  an  admission  in  the  manner,  and  upon 
the  terms,  which  the  Constitution  itself  would  justify.  \  This 
construction  derives  additional  support  from  the  next  clause. 
The  inhabitants  "  shall  be  admitted  as  soon  as  possible,  ac- 
"  cording  to  the  principles  of  the  federal  Constitution,  to  the 
"  enjoyment  of  all  the  rights,  advantages  and  immunities  of  citi- 
"  zens  of  the  United  States."  The  rights,  advantages  and  immu 
nities  here  spoken  of  must,  from  the  very  force  of  the  terms 
of  the  clause,  be  such  as  are  recognized  or  communicated  by 
the  Constitution  of  the  United  States ;  such  as  are  common 
to  all  citizens,  and  are  uniform  throughout  the  United  States. 
The  clause  cannot  be  referred  to  rights,  advantages  and  im 
munities,  derived  exclusively  from  the  State  governments, 
for  these  do  not  depend  upon  the  federal  Constitution.  Be 
sides,  it  would  be  impossible  that  all  the  rights,  advantages 
and  immunities  of  citizens  of  the  different  States  could  be 
at  the  same  time  enjoyed  by  the  same  persons.  These 
rights  are  different  in  different  States ;  a  right  exists  in  one 
State,  which  is  denied  in  others,  or  is  repugnant  to  other 
rights  enjoyed  in  others.  In  some  of  the  States,  a  freeholder 
alone  is  entitled  to  vote  in  elections ;  in  some,  a  qualification 
of  personal  property  is  sufficient;  and  in  others,  age  and 
freedom  are  the  sole  qualifications  of  electors.  In  some 
States,  no  citizen  is  permitted  to  hold  Slaves  ;  in  others,  he 
possesses  that  power  absolutely ;  in  others,  it  is  limited.  The 
obvious  meaning  therefore  of  the  clause  is,  that  the  rights 


1C 

derived  under  the  federal  Constitution  shall  be  enjoyed  by 
the  inhabitants  of  Louisiana  in  the  same  mariner  as  by  the 
citizens  of  other  States.  The  United  States,  by  the  Con 
stitution,  are  bound  to  guarantee  to  every  State  in  the  Union 
a  republican  form  of  government ;  and  the  inhabitants  of 
Louisiana  are  entitled,  when  a  State,  to  this  guarantee.  Each 
State  has  a  right  to  two  senators,  and  to  representatives  ac 
cording  to  a  certain  enumeration  of  population  pointed  out 
in  the  Constitution.  The  inhabitants  of  Louisiana,  upon 
their  admission  into  the  Union,  are  also  entitled  to  these  privi 
leges.  The  Constitution  further  declares,  "  that  the  citizens 
"  of  each  State  shall  be  entitled  to  all  the  privileges  and  im- 
"  munities  of  citizens  in  the  several  States."  It  would  seem 
as  if  the  meaning  of  this  clause  could  not  well  be  misinter 
preted.  It  obviously  applies  to  the  case  of  the  removal  of 
a  citizen  of  one  State  to  another  State ;  and  in  such  a  case 
it  secures  to  the  migrating  citizen  all  the  privileges  and  im 
munities  of  citizens  in  the  State  to  which  he  removes.  It 
cannot  surely  be  contended,  upon  any  rational  interpreta 
tion,  that  it  gives  to  the  citizens  of  each  State  all  the  privi 
leges  and  immunities  of  the  citizens  of  every  other  State,  at 
the  same  time  and  under  all  circumstances.  Such  a  construc 
tion  would  lead  to  the  most  extraordinary  consequences.  It 
would  at  once  destroy  all  the  fundamental  limitations  of  the 
State  constitutions  upon  the  rights  of  their  own  citizens  ;  and 
leave  all  those  rights  at  the  mercy  of  the  citizens  of  any  other 
State,  which  should  adopt  different  limitations.  According  to 
this  construction,  if  all  the  State  constitutions,  save  one,  pro 
hibited  Slavery,  it  would  be  in  the  power  of  that  single  State, 
by  the  admission  of  the  right  of  its  citizens  to  hold  Slaves, 
to  communicate  the  same  right  to  the  citizens  of  all  the  oth 
er  States  within  their  own  exclusive  limits,  in  defiance  of 
their  own  constitutional  prohibitions ;  and  to  render  the  ab 
surdity  still  more  apparent,  the  same  construction  would 
communicate  the  most  opposite  and  irreconcilable  rights  to 
the  citizens  of  different  States  at  the  same  time.  It  seems 


17 

therefore  to  be  undeniable,  upon  any  rational  interpretation, 
that  this  clause  of  the  Constitution  communicated  no  rights 
in  any  State,  which  its  own  citizens  do  not  enjoy ;  and  that 
the  citizens  of  Louisiana,  upon  their  admission  into  the 
Union,  in  receiving  the  benefit  of  this  clause,  would  not  en 
joy  higher,  or  more  extensive  rights  than  the  citizens  of  Ohio. 
It  would  communicate  to  the  former  no  right  of  holding 
Slaves,  except  in  States,  where  the  citizens  already  possess 
ed  the  same  right  under  their  own  State  constitutions  and 
laws. 

The  Treaty,  then,  by  providing  for  the  inhabitants  of 
Louisiana  the  enjoyment  of  all  the  rights,  advantages  and 
immunities  of  citizens  of  the  United  States,  seems  distinctly 
to  have  pointed  to  those  derived  from  the  federal  Constitu 
tion,  and  not  to  those,  which,  being  derived  from  other  sour 
ces,  were  enjoyed  by  some  and  denied  to  others  of  the  citi 
zens  of  the  United  States. 

The  remaining  clause  of  the  Treaty,  "  that  in  the  mean 
"  time"  the  inhabitants  "  shall  be  maintained  and  protected 
"  in  the  free  enjoyment  of  their  liberty,  property,  and  the 
"  religion,  which  they  profess,"  requires  no  examination.  It 
manifestly  applies  to  the  period  of  its  Territorial  govern 
ment  ;  and  has  no  reference  to  the  terms  of  its  admission  into 
the  Union,  or  to  the  condition  of  the  Territory  after  it  be 
comes  a  State.  But  it  may  be  confidently  asked  whether,  if 
the  whole  Ordinance  of  1787,  which  contains  the  prohibition 
of  Slavery,  had  been  extended  to  Louisiana,  there  would 
have  been  any  thing  inconsistent  with  the  enjoyment  of  liber 
ty,  property  or  religion  ?  So  far  as  Slaves  are  deemed  pro 
perty,  it  might  be  just  that  the  then  real  owners  within  the 
Territory  should  be  secured  in  the  enjoyment  of  that  pro 
perty  ;  but  the  permission  to  acquire  such  property  in  future^ 
like  every  other  right  of  property,  ought  to  depend  upon 
sound  legislation,  and  be  granted  or  denied  by  Congress,  as 
its  own  judgment  should  direct.  And  the  memorialists  can- 


18 

not  perceive,  in  this  clause  of  the  Treaty,  any  restriction  upon 
the  right  of  Congress  to  exercise  the  utmost  freedom  of  legis 
lation  as  to  the  future  introduction  of  Slaves  into  the  ceded 
Territory. 

Congress,  after  this  cession,  divided  the  Territory  into  two 
Territorial  governments ;  and  by  an  act  passed  on  the  2d  of 
March,  1805,  in  the  exercise  of  its  legislative  discretion,  di 
rected  that  the  Orleans  Territory  (which  has  since  become 
the  State  of  Louisiana,)  should  be  governed  by  the  Ordinance 
of  1787,  excepting  as  to  the  descent  and  distribution  of  es 
tates,  and  the  article  respecting  Slavery.  By  a  subsequent 
act  of  the  llth  of  April,  1811,  authorizing  the  inhabitants  of 
this  Territory  to  become  a  State,  Congress  annexed  several 
highly  important  conditions  to  the  exercise  of  this  high  act  of 
sovereignty.  Among  other  conditions,  it  required  that  the 
River  Mississippi,  and  the  waters  thereof,  should  be  high 
ways,  and  remain  forever  free  to  all  the  inhabitants  of  the 
United  States  and  its  Territories,  without  any  tax,  toll  or  im 
post  laid  by  the  State  therefor ;  that  the  constitution  should 
contain  the  fundamental  principles  of  civil  and  religious  lib 
erty,  and  should  allow  the  trial  by  jury  in  criminal  cases, 
and  the  privilege  of  the  writ  of  habeas  corpus ;  that  all  the 
laws,  records  and  judicial  proceedings  of  the  State,  judicial 
and  legislative,  should  be  in  the  language,  in  which  the  laws 
of  the  United  States  are  written ;  that  the  people  should  dis 
claim  all  right  to  the  unappropriated  Territory,  within  the 
limits  of  the  State,  and  that  the  same  should  be  at  the  dispo 
sal  of  the  United  States ;  that  lands  sold  by  the  United  States 
should  be  exempt  from  taxation  for  five  years  from  the  sale ; 
and  that  lands  of  non-residents  should  not  be  taxed  higher 
than  those  of  residents.  These  conditions  are  certainly  very 
striking  limitations  of  sovereignty,  and  embrace  most  of  the 
fundamental  regulations  of  the  Ordinance  of  1787,  excepting 
the  article  touching  Slavery.  It  is  not  known  to  the  memori 
alists  that  any  doubt  of  their  constitutionality,  or  of  their  per- 


.  19 

feet  harmony  with  the  Treaty  of  1 803,  was  ever  entertained, 
either  in  Congress  or  in  Louisiana ;  and  yet  they  contained 
some  principles  as  repugnant  to  the  original  jurisprudence  of 
the  Territory,  at  the  time  of  its  cession,  as  could  well  be  de 
vised  5  and  if  Congress  could  then  impose  such  conditions, 
what  reason  is  there  to  say,  that  it  may  not  now  impose  the 
same  conditions  on  the  Missouri  Territory  ?  and  if  such  con 
ditions,  why  not  any  others,  which  its  wisdom,  its  justice  or 
its  policy  may  dictate  ? 

Upon  the  whole,  the  memorialists  would  most  respectfully 
submit,  that  the  terms  of  the  Constitution,  as  well  as  the  prac 
tice  of  the  governments  under  it,  must,  as  they  humbly  con 
ceive,  entirely  justify  the  conclusion,  that  Congress  may  pro 
hibit  the  further  introduction  of  Slavery  into  its  own  Territo 
ries,  and  also  make  such  prohibition  a  condition  of  the  ad 
mission  of  any  New  State  into  the  Union. 

If  the  Constitutional  power  of  Congress  to  make  the  propos 
ed  prohibition  be  satisfactorily  shewn,  the  justice  and  policy 
of  such  prohibition  seem  to  the  undersigned  to  be  supported 
by  plain  and  strong  reasons.  The  permission  of  Slavery  in 
a  New  State  necessarily  draws  after  it  an  extension  of  that 
inequality  of  representation,  which  already  exists  in  regard  to 
the  original  States.  It  cannot  be  expected,  that  those  of  the 
original  States,  which  do  not  hold  Slaves,  can  look  on  such  an 
extension  as  being  politically  just.  As  between  the  original 
States,  the  representation  rests  on  compact  and  plighted  faith ; 
and  your  memorialists  have  no  wish,  that  that  compact  should 
be  disturbed,  or  that  plighted  faith  in  the  slightest  degree  vio 
lated.  But  the  subject  assumes  an  entirely  different  charac 
ter,  when  a  New  State  proposes  to  be  admitted.  With  her 
there  is  no  compact,  and  no  faith  plighted ;  and  where  is  the 
reason,  that  she  should  come  into  the  Union  with  more  than 
an  equal  share  of  political  importance  and  political  power  ? 
Already  the  ratio  of  representation,  established  by  the  Con 
stitution,  has  given  to  the  States  holding  Slaves  twenty  rnem-> 


20 

bers  in  the  House  of  Representatives  more  than  they  would 
have  been  entitled  to,  except  under  the  particular  provision 
of  the  Constitution.  In  all  probability,  this  number  will  be 
doubled  in  thirty  years.  Under  these  circumstances,  we 
deem  it  not  an  unreasonable  expectation,  that  the  inhabitants 
of  Missouri  should  propose  to  come  into  the  Union,  renounc 
ing  the  right  in  question,  and  establishing  a  constitution,  pro 
hibiting  it  for  ever.  Without  dwelling  on  this  topic,  we  have 
still  thought  it  our  duty  to  present  it  to  the  consideration  of 
Congress.  We  present  it  with  a  deep  and  earnest  feeling  of 
its  importance,  and  we  respectfully  solicit  for  it  the  full  con 
sideration  of  the  National  Legislature. 

Your  memorialists  were  not  without  the  hope,  that  the  time 
had  at  length  arrived,  when  the  inconvenience  and  the  danger 
of  this  description  of  population  had  become  apparent,  in  all 
parts  of  this  country,  and  in  all  parts  of  the  civilized  world. 
It  might  have  been  hoped  that  the  New  States  themselves 
would  have  had  such  a  view  of  their  own  permanent  interests 
and  prosperity,  as  would  have  led  them  to  prohibit  its  exten 
sion  and  increase.  The  wonderful  increase  and  prosperity 
of  the  States  north  of  the  Ohio  is  unquestionably  to  be  as 
cribed  in  a  great  measure  to  the  consequences  of  the  Ordi 
nance  of  1787;  and  few,  indeed,  are  the  occasions,  in  the 
history  of  nations,  in  which  so  much  can  be  done,  by  a  sin 
gle  act,  for  the  benefit  of  future  generations,  as  was  done  by 
that  Ordinance,  and  as  may  now  be  done  by  the  Congress  of 
the  United  States.  We  appeal  to  the  justice  and  the  wisdom 
of  the  National  Councils  to  prevent  the  further  progress  of  a 
great  and  serious  evil :  We  appeal  to  those,  who  look  for 
ward  to  the  remote  consequences  of  their  measures,  and  who 
cannot  balance  a  temporary  or  trifling  convenience,  if  there 
were  such,  against  a  permanent,  growing,  and  desolating  evil. 

We  cannot  forbear  to  remind  the  two  Houses  of  Congress, 
that  the  early  and  decisive  measures  adopted  by  the  Ameri 
can  Government  for  the  abolition  of  the  Slave  Trade  are 


21 

among  the  proudest  memorials  of  our  nation's  glory.  That 
Slavery  was  ever  tolerated  in  the  Republic  is,  as  yet,  to  be 
attributed  to  the  policy  of  another  government.  No  imputa 
tion,  thus  far,  rests  on  any  portion  of  the  American  Confede 
racy.  The  Missouri  Territory  is  a  new  country.  If  its  ex 
tensive  and  fertile  fields  shall  be  opened  as  a  market  for 
Slaves,  the  Government  will  seem  to  become  a  party  to  a 
traffic  which,  in  so  many  acts,  through  so  many  years,  it  has 
denounced  as  impolitic,  unchristian,  inhuman.  To  enact  laws 
to  punish  the  traffic,  and  at  the  same  time  to  tempt  cupidity 
and  avarice  by  the  allurements  of  an  insatiable  market,  is 
inconsistent  and  irreconcilable.  Government,  by  such  a 
course,  would  only  defeat  its  own  purposes,  and  render  nu 
gatory  its  own  measures.  Nor  can  the  laws  derive  support 
from  the  manners  of  the  people,  if  the  power  of  moral  senti 
ment  be  weakened,  by  enjoying,  under  the  permission  of 
Government,  great  facilities  to  commit  offences.  The  laws 
of  the  United  States  have  denounced  heavy  penalties  against 
the  traffic  in  Slaves,  because  such  traffic  is  deemed  unjust 
and  inhuman.  We  appeal  to  the  spirit  of  these  laws  :  We 
appeal  to  this  justice  and  humanity :  We  ask  whether  they 
ought  not  to  operate,  on  the  present  occasion,  with  all  their 
force  ?  We  have  a  strong  feeling  of  the  injustice  of  any 
toleration  of  Slavery.  Circumstances  have  entailed  it  on  a 
portion  of  our  community,  which  cannot  be  immediately  re 
lieved  from  it,  without  consequences  more  injurious  than  the 
suffering  of  the  evil.  But  to  permit  it  in  a  new  country, 
where  yet  no  habits  are  formed,  which  render  it  indis 
pensable,  what  is  it,  but  to  encourage  that  rapacity,  and 
fraud  and  violence,  against  which  we  have  so  long  pointed 
the  denunciations  of  our  penal  code  ?  What  is  it,  but  to 
tarnish  the  proud  fame  of  the  country  ?  What  is  it,  but  to 
throw  suspicion  on  its  good  faith,  and  to  render  questionable 
all  its  professions  of  regard  for  the  rights  of  humanity  and 
the  liberties  of  mankind  ? 


22 

As  inhabitants  of  a  free  country ;  as  citizens  of  a  great  and 
rising  Republic ;  as  members  of  a  Christian  community ;  as 
living  in  a  liberal  and  enlightened  age,  and  as  feeling  our 
selves  called  upon  by  the  dictates  of  religion  and  humanity ; 
we  have  presumed  to  offer  our  sentiments  to  Congress  on 
this  question,  with  a  solicitude  for  the  event,  far  beyond 
what  a  common  occasion  could  inspire. 


AN  INITIAL  FINE  OP  25  CENTS 

OVERDUE.  °N    ™E    8EVENTH     DAY 


NOV  4  S  ?1005 


'43  (8796s) 


IV.270734 


THE  UNIVERSITY  OF  CALIFORNIA  LIBRARY 


